On January 20th, 2021, Joe Biden’s inauguration will mark the end of the Trump era. Over the last four years, America saw its role on the international stage transformed, its domestic politics inflamed even more than before, and its institutions battered. Biden hopes to change that, to replace the rancor of the Trump era with a new patriotism and belief in the country’s future. Indeed, he has repeatedly stressed unity, reason, and science, seeking to reconcile America’s staunchly polarized electorate and invigorate its fragilized democracy. But speeches, no matter how rememberable, are not enough. If America wants to keep its democracy healthy, it needs crucial reform. The first step it must take is to revitalize its constitutional system of checks and balances and strengthen the rule of law.
An earnest belief in constitutionalism has been a hallmark of US political discourse since the beginning of the country’s history. When the thirteen American colonies officially seceded from Britain in 1776, the shadow of despotism loomed great over the world. Though some countries, including Britain, espoused relatively liberal governments, most nations of the 18th century were firmly in the grip of absolutist kings who claimed a divine mandate to rule unopposed. To avoid such a tyrannical outcome, the authors of America’s constitution wanted to segregate power as much as possible between the three branches of government, adhering to the doctrine of separating political authority dreamed up by the Englishman John Locke in the late 1600s and refined into the familiar scheme of distinct legislative, executive, and judicial powers by the French nobleman Charles Baron de Montesquieu in the 18th century.
The separation of powers, as argued by the framers, was the solution to limiting the consolidation of power in the State and hence the creation of a despotic ruler (such as in monarchies) or body of rulers (like in oligarchies). Congress can make laws but it cannot enforce them. The president can execute laws but is unable to legislate. And the application and interpretation of the contents of the law are under the authority of an independent judiciary. The resulting system draws distinct lines between the purview of governmental bodies and mitigates the consolidation of power.
Not only does the constitution outline the separation of powers, it also promotes the so-called doctrine of “checks and balances.” The three key powers of the State are, in fact, separate, but that does not mean they cannot interfere in each other’s activities. Indeed, because some humans aspire toward concentrating power in their own hands, others must hold the constitutional means to resist encroachments on their jurisdiction. While no branch of government should be dependent on another, it can nevertheless be held accountable by another branch; as James Madison stated in Federalist 51, “ambition must be made to counteract ambition.” Congress can check the president’s power through impeachment, while the executive can quash a law passed by congress through a veto (albeit that power can be overridden by a two-thirds majority in the Senate and House). The Supreme Court, meanwhile, can declare any law or presidential action unconstitutional—the so-called prerogative of “judicial review,” established by Chief Justice John Marshall in Marbury v Madison (1803).
The framers of the constitution did much to prevent an excessive centralization of power and to thereby secure a legitimate, democratic government. However, they also left the preservation of certain checks and balances to custom and individual character, instead of laying them out explicitly in the law. Moreover, tradition and precedent are often the only means available to enforce said law. The result is a system that functioned for more than two centuries thanks to the professionalism of its bureaucrats and the honesty of its leaders—but struggled when faced with a president displaying corrupt and authoritarian tendencies.
In the last four years, the Trump administration repeatedly undercut, violated, and circumvented the law and established custom. The constitution’s Appointments Clause states the president must seek confirmation from the Senate for their cabinet’s officials. Donald Trump did not; at least 15 of his cabinet officials currently hold their positions illegally. The Foreign Emoluments Clause of the constitution prevents the president from receiving emoluments—financial benefits—from foreign states. Mr. Trump undermined this law when he refused to sell his shares in the Trump Organization or place them in a blind trust: as such, foreign powers, including Saudi Arabia, spend money at his hotels, openly flouting the rule of law and exposing America’s executive branch to overseas influence.
He also seems to have violated the 1939 Hatch Act, which aims to prevent federal employees from participating in political activities when present in their official capacity, during the RNC Convention in August; to name but a few infringements of the rules, Melania Trump offered her remarks at the convention from the White House Rose Garden, and the RNC during the convention broadcasted a tape of Mr. Trump assisting in a naturalization ceremony as well as a presidential pardon. Not to mention the impeachment proceedings brought against Trump last year over his attempt to withdraw American aid to Ukraine already approved by Congress in exchange for “dirt” on Hunter Biden, his rival’s son, or his administration’s continuous efforts to reverse and delegitimize the outcome of November’s election despite the Electoral College’s confirmation of Joe Biden’s victory. The law acts as a check on the power of the sovereign, yet Mr. Trump appears above its reach.
The most pernicious of Mr. Trump’s violations of the law and custom has been the promotion of the so-called “unitary executive theory.” A favorite of former Vice President Dick Cheney and Mr. Trump’s Attorney General, William Barr, the theory asserts the president’s absolute authority over his cabinet; he is accountable to no one, not even Congress, but the people every four years. The idea clearly goes against the philosophy of checks and balances the founders espoused: the president acts effectively as an elected monarch. Mr. Trump moved America considerably toward the unitary executive theory by firing inspectors generals, politicizing the Department of Justice, and ignoring congressional subpoenas.
Inspectors generals serve as bipartisan guardians of the rule of law, exercising vital oversight over the executive branch’s activities by informing Congress of instances of inefficacy, fraud, and abuse. By firing them, Mr. Trump made clear his administration was accountable to no one but himself. His government ignored congressional subpoenas during his impeachment last year, further weakening Congress’s constitutional mandate to check the executive branch’s authority. Continuing the trend of using executive authority against Congress and the people, he even openly admitted to refusing additional post office funding in order to hamper voting by mail. And the outgoing president has made ample use of his executive pardoning power unjustly: many of the pardoned, including Paul Manafort and Roger Stone, were Mr. Trump’s cronies embroiled in Robert Muller’s Russia probe, which revealed they had lied to Congress and obstructed justice to stymie transparency and the administration’s accountability to the legislature and the public.
Further records of Mr. Trump and his cabinet’s violations of the rule of law could fill dozens of more pages in this article. Nevertheless, even after four years of corruption, obstruction, and fraud, America remains a vibrant democracy. Despite pressure from Mr. Trump and his allies to overturn the election under the pretext of unproven allegations of voter fraud, the Electoral College still approved Joe Biden’s victory. In an admirable example of the US judiciary’s independence and integrity, the Republican-dominated Supreme Court struck down pleas by some (Republican-controlled) states to reject the outcome of the election. And perhaps most promisingly, the author of this article is able to document the Trump administration’s blatant disregard for law and custom with a constitutional right to freedom of speech.
Yet the constitution’s endurance does not guarantee its survival. By disregarding legal and customary precedent at every turn, Mr. Trump has redefined the president’s relationship with the law, ironically setting a new precedent. Indeed, he demonstrated that it was possible to repeatedly—and egregiously—violate the law all while avoiding its sanctions. A future president will find it easier to manipulate America’s institutions and destabilize its democracy owing to Mr. Trump’s example, especially his gleeful embrace of the unitary executive theory. The only barrier to his ambitions was his own incompetence and his cabinet’s clumsiness, which verged on the comical at times.
Reform, therefore, is crucial. It should aim at increasing the legislature’s check on the presidency and providing explicit means to tackle a president’s negligence of the law and established norms. A start is the Protecting Our Democracy Act of 2020, a proposal by House Democrats which would, among other things, restrict presidential pardon power, allow Congress to impose fines on officeholders who ignore congressional subpoenas, make it harder for the president to fire inspector generals, and codify some aspects of established custom, such as the illegality of accepting “dirt” from other countries on political opponents.
Passing the act is a start, but more needs to be done on the part of the people, government, and institutions to revitalize American democracy. Start with the people. The law embodies the ultimate expression of the social contract between the individual and the State. It represents, in the words of Thomas Hobbes, the “public conscience.” That means the law only has force if the people recognize its existence and, consequently, its rupture. Thus, Americans need to call out their president out when they subvert the laws, as they already have done in voting Mr. Trump out of office. Additionally, institutions such as the press should continue to scrutinize the government’s actions, as the remarkable journalism by myriad news outlets during the Trump presidency has shown. But journalism should also seek to restore the public’s confidence by promoting unbiased reporting and integrity; when half the population regards the press as vectors of “fake news,” it loses its ability to hold the government—including the legislature and the courts—accountable.
Finally, the State also has a role to play in safeguarding American democracy. Beyond respectable conduct and obeying the law, the incoming Biden administration must restore harmony between the executive branch and the legislature. Bitter relations between the Congress and the presidency hamper progress and stifle reform—an outcome surely to be avoided in the aftermath of the coronavirus pandemic and the damage it has wreaked across the nation. In addition, a government’s lack of constitutional accountability to Congress undermines the public’s confidence, fueling political radicalism in a time where moderation and sensible governance should be regarded as paragon virtues.
The great American democratic experiment is far from over. But after 200 years of successful results, the system failed to hold a reckless president fully accountable for his crimes. To ensure the survival of US democracy, revisiting the constitution’s framework for liberal government and the rule of law is the place to start.